May 14, 2008
Can't Be Bothered
A hearing committee in Louisiana has recommended a two-year suspension of an attorney who accepted a bankruptcy matter and abandoned the practice of law. Of particular note is the attorney's attitude toward the bar disciplinary process:
While attempting to serve the Respondent, the Office of the Disciplinary Counsel investigator...spoke with Respondent's wife, who advised the investigator that she had spoken to her husband and that he did not wish to cooperate with the Office of the Disciplinary Counsel and that he would not be meeting with the office. The Respondent's wife also advised that the Respondent no longer wished to be bothered with anything the Office of the Disciplinary Counsel needed from him.
Recovery Prevents Disbarment
The Louisiana Supreme Court imposed a three-year suspension nunc pro tunc to 2000 (when the attorney had been placed on disability inactive status) in a case involving multiple instances of misconduct that the attorney "largely admitted..." as mitigation, the attorney claimed that the misconduct had occurred during a period of substance abuse for which he has been treated and achieved sobriety. the court concluded that a downward departure from the baseline sanction of disbarment was appropriate:
The record indicates that in 1993, respondent realized he was suffering from a grave disability in the form of an addiction to drugs and alcohol. Respondent requested that this court transfer him to disability inactive status and he thereafter admitted himself to a long-term substance abuse treatment facility. Since being admitted to treatment, respondent has achieved and maintained sobriety. He has demonstrated a cooperative attitude during these proceedings and is remorseful for the harm caused by his addiction. Respondent also has an excellent reputation in the legal community and in the community at large, as evidenced by the compelling character testimony offered on his behalf before the hearing committee.
One notable fact is that there was no medical testimony offered to prove a causal connection between the addiction and misconduct. Rather, "the committee accepted [the attorney's] belief that his chemical dependency was the cause of the misconduct." Many courts would require expert testimony on addiction and causation to treat it as a mitigation factor. Here, the result seems appropriate as the attorney has been suspended for over seven years and demonstated substantial rehabilitation. (Mike Frisch)
May 13, 2008
Lubet on Honesty and Lawyers, With Real-Life Examples
Posted by Alan Childress
Steven Lubet (Northwestern) has just published his NYU Press book, The Importance of Being Honest: How Lying, Secrecy, and Hypocrisy Collide with Truth in Law. Here is an initial review from Publishers' Weekly:
Lubet, a law professor at Northwestern (Lawyers Poker: 52 Lessons That Lawyers Can Learn from Card Players) tackles a series of subtle and thorny ethical questions that lawyers and judges face each day. These questions can challenge their integrity, determine their effectiveness and affect how the public views the legal profession. Lubet chooses a few notorious examples to showcase his points, such as the ethical questions raised by Supreme Court Justice Scalia's duck-hunting trip with Vice President Cheney (should the justice have recused himself in Sierra Club v. Cheney?) and Bill Clinton's infamous Monica Lewinsky deposition (did he lie to his lawyer?).
Many of Lubet's examples are about less public conundrums, such as what lawyers should do if they make a mistake and the problem of judicial bullies. Lubet's central concern, which he mines adeptly, is with actions that are arguably legal but may also be strategically or morally wrong. Lubet's writing is a great strength: straightforward, funny, intelligent and devoid of legalese. Like a good color analyst, he conveys an insider's knowledge in an entertaining and informative way.
I am also looking forward to the expert comments on the book which David McGowan promises on Legal Ethics Forum.
May 13, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Split Sanction Proposed
The Illinois Review Board has recommended a two-year suspension with the second year stayed in favor of probation in a case where the lawyer had neglected an appeal, forged a child support order and other court documents, and had been convicted of attempted obstruction of justice and attempted forgery in two separate cases. The Administrator (i.e. Bar Counsel) had sought a three-year suspension without a stay for probation. Mitigation evidence was presented that the lawyer's wife had a history of mental illness and had set the family home on fire. Medical evidence established that the lawyer had a history of panic disorder and personality disorder but that the misconduct "was volitional and within his conscious control."
In rejecting the arguments in favor of more severe discipline, the Review Board concluded:
Laz's misconduct was serious, but we also consider the evidence in mitigation, including the lack of prior discipline, favorable testimony about Laz's character from two respected judges and an attorney, and the Hearing Board's finding that personal gain was not the motivation for Laz's misconduct. After considering these and all of the relevant circumstances, we recommend that Laz's license to practice law be suspended for two years, with the suspension stayed after one year subject to conditional probation.
Last, we note that counsel for the Administrator argues for the first time in her reply brief that the Review Board should take judicial notice of the fact that a new disciplinary complaint has been filed against Laz (In re Laz, No. 07 CH 121, complaint filed Dec. 12, 2007) as evidence of a propensity to commit further misconduct. While we may take judicial notice of the public records of the Commission (In re Owen, 144 Ill.2d 372, 378-79, 581 N.E.2d 633 (1991)), it would be unfair to give any consideration to the newly filed complaint because the issue was not raised until the reply brief, and Laz has had no opportunity to respond. Moreover, there has been no proof of the new charges. We will not use unproven allegations as a basis for our sanction recommendation.
I'm not sure I agree with that last part. I would think that, rather than forward a probation recommendation with fresh charges pending, it might be prudent to hold the disposition until all pending charges are adjudicated. On the other hand, if the recommendation is adopted, the attorney will be suspended while the new charges work their way through the system. (Mike Frisch)
The South Carolina Supreme Court suspended an attorney for six months for misconduct in connection with the settlement of a personal injury claim. The attorney had settled the case without advising the client, signed the client's and her husband's name to the release and collected his fee without disbursing the client's share. The client fired the lawyer and learned about the settlement when she retained new counsel.
The accused lawyer sought but was not permitted to submit evidence concerning successor counsel. The court found no error in the exclusion of that evidence:
At the start of the hearing, Respondent’s counsel indicated that he intended to call Witness B, a former client of Attorney’s and a member of Respondent’s office staff who was also his client. According to Respondent’s counsel, Witness B was to testify regarding the “bad blood” that existed between Respondent and Attorney prior to the Client matter. Counsel also intended to elicit testimony from Witness B regarding a grievance she had filed against Attorney. Disciplinary counsel objected to the admission of this testimony on the ground it was irrelevant to a determination of Respondent’s alleged misconduct. After hearing arguments from counsel, the Panel ruled that Respondent’s counsel could not present any testimony regarding a grievance against Attorney and needed to limit the testimony to only the interactions between Attorney and Respondent regarding the Client matter.
The court rejected the 90 day suspension proposed by the panel below as unduly lenient. (Mike Frisch)
A Fair Result
An attorney who had fabricated documents and made false statements in response to a bar investigation of an overdraft of a $750 trust account check was suspended on consent for two years by the Pennsylvania Supreme Court. There was mitigating evidence including remorse, lack of practice experience, voluntary closing of law practice and cooperation "evidenced by [the attorney's] voluntary decision to enter into consent discipline.
This strikes me as a good example of the value of consent discipline. The sanction is swift and sure without consuming limited disciplinary resources. The lawyer cannot resume practice without demonstrating substantial rehabilitation and is spared the humiliation of disbarment. Credit is given for cooperation and recognition of wrongdoing. In all, a responsible exercise of discretion by the disciplinary system. (Mike Frisch)
Most Foreboding Headline of the Day
It forebodes on several levels. [Alan Childress]
"I Am A Merciless SOB"
The Maryland Court of Appeals suspended a judge of the District Court for 30 days without pay who "had used profanity in the courtroom, made comments that manifested bias towards particular groups, disparaged the Judiciary, insulted defendants, and manifested a lack of courtesy, patience and dignity..." Samples: "What's the big rush to get back to Pennsylvania? It's an ugly state." After a woman took a crying baby out of the courtroom: "If she only knew how much I hate kids, she would not have brought that kid in here today." When a defendant pleaded not guilty: "Would you like some cheese with that whine because I've heard about all I wish to hear." In response to a plea for mercy: "I don't have any mercy. You haven't heard about me? I am a merciless SOB." To other defendants: "Well Mr. Jones, the hits keep coming. I mean, if there is a pile of shit there you'll step in it..." and "Ma'am, you can't bullshit a bullshitter..." He also made comments suggesting that Circuit Court judges don't work after lunch.
The court concluded that "[u]se of vulgar language erodes public trust and confidence in the Judiciary...Trust and confidence is undermined when a judge disparages and undermines fellow members of the judicial system." (Mike Frisch)
May 12, 2008
Magistrate Reprimanded, Suspended Until Retirement
The South Carolina Supreme Court issued a public reprimand and prohibited a magistrate judge from seeking or accepting a future judicial position "without the express permission of the Supreme Court." The court accepted the magistrate judge's offer to retire and placed him on interim suspension until his retirement.
He was found to have proposed and encouraged a clerk to videotape herself engaged in sexual relations with another magistrate and to have used the term "niggers" in a conversation with another clerk referring to men that another clerk was possibly dating. As a result of the second allegation, a clerk wrote a letter to the NAACP, which had resulted in adverse publicity for the judge and his magistrate's office. Other charges were not sustained.
Initially, an investigative panel had dismissed the charges. The magistrate advised his fellow magistrates that he had been cleared and that he hads passed a polygraph test (the results of which were later determined to be inaccurate). the complaining clerks were fired by a vote of the county magistrates. However:
After the meeting on January 5, 2004, several magistrates talked amongst themselves and reported having misgivings about the actions taken. It was discussed that respondent may not have accurately described the circumstances surrounding the polygraph test. Furthermore, on January 6, 2004, a state senator sent a letter to the chief magistrate judge indicating his understanding that the reasons given for the magistrates’ actions were not justified, and he encouraged the court to take immediate action to reinstate the three employees. The magistrates met again on January 8, 2004, and voted to reinstate all of the employees.
The panel that heard these allegations found the hearing testimony of the magistrate "was not credible or believable." (Mike Frisch)
Bad Advice Leads To Reprimand
The Maine Board of Bar Overseers imposed a reprimand as an agreed sanction where the attorney gave incorrect legal advice in a bankruptcy matter concerning the correct listing of a $4,000 debt that the client had been ordered to pay his ex-wife for her attorney fees. As a result, the client wrongly thought the debt discharged and did not make payments. The client was found in contempt and incurred interst and attorney fees totalling $1,850. The attorney admitted he had "fail[ed] to use reasonable care and skill and his best judgment by giving improper legal advice..." (Mike Frisch)
The Louisiana Attorney Discipline Board has just updated its web page, which explains the number of bar discipline cases we have posted today from that jurisdiction. Here is a hearing committee report involving opposing counsel who were prosecuted together as a result of contempt citations. During a proceeding in open court, one lawyer called the other a "jackass." Opposing counsel responded "Your mother is a jackass." There followed what is characterized as a "short altercation." Both were sentenced to a short term of imprisonment. The one who was found to have initiated the altercation got a 30 day suspended suspension; the other got a public reprimand. (Mike Frisch)
"Not A Wise Move"
In a very interesting opinion, a hearing committee of the Louisiana Attorney Discipline Board has recommended the reinstatement of an attorney who had been suspended for three years for misconduct that had taken place in connection with two nation wide class action cases. The misconduct involved pressing frivolous claims and false statements under oath.
The main stumbling block to reinstatement was a civil suit filed in federal court by the attorney against Chief disciplinary Counsel, the Board and the Supreme Court claiming that he had been selectively prosecuted based on his foriegn origin and religious faith. The suit was dismissed on the grounds of sovereign and absolute prosecutorial authority. The dismissal was affirmed on appeal. The committee felt that the suit "was not a wise move" but that it did not establish conclusive evidence against reinstatement. He "did have a right to seek redress in the courts."
Keep an eye on this one--not many suspended lawyers who sue the disciplinary system get reinstated." (Mike Frisch)
Conditional Bar Admission
The Louisiana Supreme Court ordered that an applicant for bar admission be conditionally admitted for a three-year period. The applicant must provide quarterly reports of his steps to establish financial responsibility throughout the period of the conditional admission. We can look for such admissions to be a trend for the future in light of the ABA's endorsement of such forms of admission, as reported in a recent article in the ABA Journal. (Mike Frisch)
Opinion Not Defamatory
The New York Appellate Division for the Second Judicial Department affirmed an order dismissing a complaint alleging defamation brought by the former office manager of a law firm. The statements at issue were made to the former employee's insurance company that was processing a no-fault benefits claim as a result of a car accident. Expression of an opinion is not actionable:
Here, the defendants demonstrated their entitlement to summary judgment by establishing that the communication at issue, which amounted to a subjective characterization of the plaintiff's behavior and an evaluation of her job performance, constituted a nonactionable expression of opinion.
No CLE, No License To Practice
The Pennsylvania Supreme Court accepted a proposed consent disposition and suspended an attorney for 18 months. The attorney had been transferred to inactive status in 2000 for failure to comply with continuing legal education obligations and failure to comply with procedures required of such attorneys. He then had engaged in the unauthorized practice of law in several matters. (Mike Frisch)
May 11, 2008
Buying Drugs From Client Leads To Disbarment
The Kansas Supreme Court disbarred an attorney based on findings of multiple disciplinary rule violations, which stemmed from his purchase of marijuana from a client on 10-15 occasions. The conduct was found to have involved a conflict of interest and assisting the client in committing a criminal offense. (Mike Frisch)